Sons Confirmed as Attorneys Despite Challenge

Regrettably, cases in which the behaviour of an attorney for someone who is elderly or infirm is cause for an enquiry – and often an intervention – by the Public Guardian are increasingly common.

An attorney has the responsibility always to act in the best interests of the person who gave them the power of attorney. When there appears to be something amiss, an investigation (often triggered by social services) will normally result. Where the investigation warrants it, the Public Guardian will go to the Court of Protection to have the attorney(s) removed and the power of attorney vested in an individual (usually a qualified solicitor) appointed by them.

It is unusual for the Court to refuse such a request. However, recently the Court did so. The application involved a man in his 70s who suffers from dementia and lives in a care home. He appointed his three sons to be his attorneys in 2007.

By 2014, the care home fees were very substantially in arrears. The Office of the Public Guardian applied to have the sons removed as attorneys, giving evidence that they were uncooperative about providing information regarding their father's finances and visited him infrequently.

However, the Court considered that the three sons should remain the man's attorneys as there was no evidence that they had used their positions as attorneys for personal gain. The judge commented, "They don't even claim travelling expenses when they go and see him, because they visit him as his sons, rather than as his attorneys." The Court also considered that the man's dementia was not such that it rendered him incapable of deciding who should manage his affairs and he was happy that his sons should continue to do so.

For expert advice when appointing your power of attorney, please do not hesitate to contact us.

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